Supreme Court Stalemate in Public Sector Union Case

The United States Supreme Court reached a 4-4 split in deciding whether non-union members could be charged compulsory fees via an agency shop agreement in public sector unions.

On April 29, 2013, ten non-union California teachers filed suit in the United States District Court for the Central District of California, challenging whether they could be forced to pay compulsory “fair share fees” to a union and claiming that the “agency shop” rules applied to public sector unions for decades since Abood v. Detroit Bd. Of Educ., 431 U.S. 209 (1977), but criticized in the Supreme Court decision in Harris v. Quinn, 573 U.S. ___ (2014), should no longer extend to public sector unions.

After both parties agreed that the case raised a pure issue of law, the district court entered judgment on behalf of the defendant unions, and the case proceeded to the U.S. Court of Appeals for the Ninth Circuit without discovery or a trial. A three-judge panel at the court of appeals issued an order granting the teachers’ Motion for Summary Affirmance on the Pleadings after the issues were briefed, which freed the teachers to petition the Supreme Court of the United States for a writ of certiorari. On June 30, 2015, the Supreme Court granted the teachers’ petition.

The issues before the Court were whether Abood should be overruled, invalidating public sector “agency shop” agreements under First Amendment law, and whether the First Amendment is violated when public employees are required to affirmatively object to the subsidization of speech by public-sector unions rather than the alternative, affirmative consent to the subsidization of union speech. “Agency shops” function when a single union is authorized by the employer to act for all workers, and the costs of the union are subsidized by all, rather than just member, employees.

Although the Court in Abood noted that to “compel employees financially to support their collective bargaining representative has an impact upon their First Amendment interests,” and that “an employee may very well have ideological objections to a wide variety of activities undertaken by the union in its role as exclusive representative,” it ultimately followed established private sector precedent that “such interference as exists is constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress.”

The Abood Court also held that for the purposes of collective bargaining, public and private sector unions were not different enough to compel a different result when applying compulsory “agency shop” fees to non-union public employees, and stated that “[t]he very real differences between exclusive agent collective bargaining in the public and private sectors are not such as to work any greater infringement upon the First Amendment interests of public employees.”

In 2014, however, the Court suggested that it might be open to revisiting the Abood decision in its opinion in Harris v. Quinn. After repeatedly criticizing and calling the Court’s analysis in Abood into question, the Court noted that Abood “rests on an unsupported empirical assumption, namely, that the principle of exclusive representation in the public sector is dependent on a union or agency shop,” also known as an agency fee.

According to the Harris Court, in order to pass the exacting scrutiny required by a First Amendment analysis, the agency fee provision must be necessary for the achievement of benefits for non-members of a union through collective bargaining efforts. And as the Court observed, no such showing was made in Harris, where the union merely stated that the “union has been an effective advocate for personal assistants in the State.”

Characterizing the approval of the agency fee provision in the Harris case as a “very substantial expansion” of Abood due to its inclusion of “partial-public” employees (the personal assistants who were “employed” by customer patients with whom the union could not file a grievance on the employee’s behalf, but paid through the State and Medicaid funding), the Court distinguished the employees at issue in Harris from those in Abood, who were “full-fledged” public employees. Due to this distinction, the Court abstained from overruling Abood, despite its many proffered reservations regarding its validity.

But an important conclusion reached by the Harris Court was that the Abood Court, in failing to draw the line between the private and public sectors, disregarded the inherently political (and therefore protected by the First Amendment) nature of speech in both collective bargaining efforts and political activity when the employer is the government. According to the Harris Court, in “the public sector, core issues such as wages, pensions, and benefits are important political issues, but that is generally not so in the private sector.”

The Harris Court went on to address whether union speech, as held in Abood, was primarily germane to collective bargaining rather than matters of actual public concern, stating “[i]ncreased wages and benefits for personal assistants would almost certainly mean increased expenditures under the Medicaid program, and it is impossible to argue that the level of Medicaid funding (or for that matter, state spending for employee benefits in general) is not a matter of great public concern.”

The Supreme Court heard oral arguments in Friedrichs v. California Teachers Association, and was set to decide whether the First Amendment allows public sector unions to charge non-member employees compulsory union fees. However, on March 29, 2016, the Court issued a one-sentence result, stating that the Court had split on the decision 4-4, and that due to the split, the lower court’s decision upholding “agency fees” would be affirmed. The effect of this result is that “agency fees” can still be charged to non-union member teachers in California via an agency shop agreement. Due to the lack of a ninth Justice, the Court’s split decision merely affirms the Ninth Circuit’s ruling on the issue.